Environmental Law and “The Law of the Horse”

“The Law of the Horse” is the title of the (perhaps apocryphal) treatise on the same subject. The point of the reference is that “there’s no there there,” as Gertrude Stein might have said: the law of the horse would simply be a compendium of contract cases that happened to involve horses, tort cases that happened to involve horses, etc.

Is that also true of environmental law? Is it just a compendium of administrative law issues that happen to involve the environment, tort cases that happen to involve the environment, etc.? Or is there something that gives the field intellectual coherence?

Some fields get their coherence from a single governing legal document, whether that’s the Constitution, the Federal Rules of Civil Procedure, or the Internal Revenue Code. That’s not true of environmental law, which has at least a half dozen major federal statutes.

But environmental law does have some distinctive aspects that cut across specific environmental problems like air pollution or hazardous waste. Here are three that strike me as most significant:

Regulatory methods. U.S. environmental law has not articulated general principles to the same extent as EU law (for instance, the precautionary principle), but there are standard approaches to assessing possible risks and managing them that cut across specific fields such as air and water pollution.

Scientific uncertainty. Environmental law is the field of law that most encounters the need to assess scientific evidence and to make decisions in the face of scientific uncertainty. In contrast, most areas of law have zero contact with modern science.

Environmental economics. Environmental law has been shaped by its relationship with the sister field of environmental economics. Much of environmental law scholarship is defined by its adoption or rejection of ideas from environmental economics, and (for better or worse) economics has deeply permeated the implementation of environmental law.

Others may have their own thoughts about what unifies the field of environmental law. But the three listed above should give some sense of why many of us find the field so intellectually richAddendum For another view of this questions, you might want to look at two articles by Todd Aagard, one in the Cornell Law Review and the other in the Duke Law Journal. Aagard stresses two distinctive features of environmental law: physuical public resource and pervasive interrelatedness.

Reader Comments

I think one thing that complicates the coherence of environmental law as a field is the tension between the ecologico-romantic philosophy of environmentalism (see Jed Purdy’s post on this blog) and the technocratic, instrumentalistic, rationalistic tools that environmental lawyers use to protect the environment (see Dan’s post).

Environmentalists are unified as a philosophical community by an appreciation for the non-human world. We find it beautiful that ecosystems are organic, spontaneously-ordered, self-correcting, interrelated, holistic. We appreciate that natural phenomena can’t be fully beheld or comprehended by a single human mind: “when we try to pick out anything by itself, we find it hitched to everything else in the universe.” For many environmentalists, there is a romantic (and even a mystical or transcendental) component to this–we feel small before that which is beyond human control.

When I think of the areas of law that seem friendly to this ecological perspective, I think of the common law, which arose spontaneously from the “bottom up” over centuries, and (some people think) embodies an organic form of wisdom which is too complex to be susceptible to explanation by a single school of thought or single human intelligence. I also think of the self-correcting free-market, which (some people think) the common law largely protects and abets. Supply and demand balance each other the same unconscious, non-rational way wolves and deer balance each other in an ecosystem.

But it is precisely the common law and markets, if unchecked, that destroy the environment. Quietism vis-à-vis the environment demands activism vis-à-vis human law and society. And so the role of environmental law is to step in with statutes and regulation—it begins at the externalities and commons problems which markets and the common law can’t solve. Environmental lawyers become the high priests of statutes like NEPA, the CAA, the CWA, CERCLA. They deploy their intelligence and creativity within human-engineered statutory frameworks–they argue about listing things in categories, about parts per million and the quantification or risk. They do cost-benefit analysis. They file lawsuits against EIPs that don’t tick the right statutory boxes and air quality standards that fail to consider the right technology alternatives. Rational government management is the goal; quantification and science the watchwords.

In other words, the *practice* of environmental law requires engineered, top-down, rational, non-mystical, Apollonian tools, that, to my eyes at least, are in tension with the ecological perspective which makes many people want to be environmental lawyers in the first place. The environmental lawyer who hikes into the wilderness on a weekend to commune with the environment that inspires him, returns to the office on Monday to argue that under the CAA the NESHAP cement kiln rule’s MACT floor allows too many parts per million of a HAP.